§ 130A-321. Variances and exemptions; considerations; duration; condition; notice and hearing.
§130A‑321. Variances and exemptions; considerations; duration; condition;notice and hearing.
(a) The Secretary mayauthorize variances from the drinking water rules.
(1) The Secretary maygrant one or more variances to a public water system from any requirementrespecting a maximum contaminant level of an applicable drinking water ruleupon a finding that:
a. Because ofcharacteristics of the raw water sources reasonably available to the system,the system cannot meet the requirements respecting the maximum contaminantlevels of the drinking water rules after application of the best technology,treatment techniques, or other means which the Secretary finds are available(taking costs into consideration); and
b. The granting of avariance will not result in an unreasonable risk to public health whenconsidering the population exposed, the projected duration of the requestedvariance and the degree to which the maximum contaminant level is being or willbe exceeded.
(2) The Secretary maygrant one or more variances to a public water system from any requirement of aspecified treatment technique of an applicable drinking water rule upon afinding that the public water system applying for the variance has demonstratedthat the treatment technique is not necessary to protect the public healthbecause of the nature of the raw water source of the system.
(3) In consideration ofwhether the public water system is unable to comply with a contaminant levelrequired by the drinking water rules because of the nature of the raw watersources, the Secretary shall consider factors such as:
a. The availability andeffectiveness of treatment methods for the contaminant for which the varianceis requested; and
b. Costs ofimplementing the best treatment(s), improving the quality of the raw water bythe best means or using an alternate source.
(4) In consideration ofwhether a public water system should be granted a variance from a requiredtreatment technique because the treatment is unnecessary to protect the publichealth, the Secretary shall consider factors such as:
a. Quality of the watersource including water quality data and pertinent sources of pollution; and
b. Source protectionmeasures employed by the public water system.
(5) In order toimplement sub‑subdivision a. of subdivision (1) of this subsection, theCommission shall adopt by rule a list of the best available technologies,treatment techniques, or other means available, to deal with each contaminantfor which a maximum contaminant level is established.
(b) The Secretary mayauthorize exemptions from the drinking water rules.
(1) The Secretary mayexempt a public water system from any requirement respecting a maximumcontaminant level or any treatment technique requirement, or from both, of anapplicable drinking water rule upon a finding that:
a. Due to compellingfactors, including economic factors, the public water system is unable tocomply with the contaminant level or treatment technique requirement;
b. The public watersystem was in operation on the effective date of the contaminant level ortreatment technique requirement or, for a system that was not in operation onthat date, only if no reasonable alternative source of drinking water isavailable to the new system; and
c. The granting of theexemption will not result in an unreasonable risk to public health whenconsidering the population exposed, the projected duration of the requestedexemption and the degree to which the maximum contaminant level is being orwill be exceeded.
(2) In consideration of whetherthe public water system is unable to comply due to compelling factors, theSecretary shall consider factors such as:
a. Construction,installation or modification of treatment equipment or systems;
b. The time needed toput into operation a new treatment facility to replace an existing system whichis not in compliance; and
c. Economic feasibilityof immediate compliance.
(c) As a condition ofissuance of either a variance or an exemption, the Secretary shall issue aschedule of compliance for the public water system, including increments ofprogress for each drinking water rule for which the variance or exemption wasissued. As a further condition of a variance or exemption, the Secretary shallrequire the public water system to implement any necessary control measuresprescribed by the Secretary during the period of the variance or exemption. The compliance schedule for an exemption shall require compliance asexpeditiously as practical but no later than June 19, 1987, for existingmaximum contaminant levels and treatment techniques, or no later than one yearfrom the issuance of the exemption for any newly adopted maximum contaminantlevel or treatment technique. The final date for compliance provided in anyexemption schedule may be extended up to three years after the date of theissuance of the exemption if the water system establishes:
(1) The water systemcannot meet the standard without capital improvements which cannot be completedwithin the period of exemption, or
(2) The system needs financialassistance for necessary improvements and has entered into an agreement toobtain such assistance, or
(3) The system hasentered into an enforceable agreement to become part of a regional public watersystem and the system is taking all practical steps to meet the standard.
If a public water systemserves 500 or fewer service connections and needs financial assistance fornecessary improvements, an exemption may be renewed for one or more additionaltwo‑year periods if the system establishes it meets the requirements setforth in subdivisions (1) and (2) of this section.
(d) The Secretary shallprovide notice and opportunity for public hearing on proposed variances andproposed variance and exemption schedules. (1979, c. 788, s. 1; 1981, c.353, ss. 1, 2; 1983, c. 891, s. 2; 1987, c. 704, ss. 3‑5.)